Petition of M/V Elaine Jones

• Decision Date: 18 June 1973
• Docket Number: No. 71-2226.,71-2226.
• Citation: 480 F.2d 11
• Parties: Petition of Canal Barge Company, Inc., as Owner and Operator of the M/V ELAINE JONES, Praying For Exoneration From or Limitation of Liability. CANAL BARGE COMPANY, INC., Petitioner-Appellant-Cross Appellee, v. Mary Kathryn GRIFFITH, Individually and as Administratrix of the Estate of George L. Griffith, Deceased, Respondent-Appellee-Cross Appellant, Terminal Railroad Assoc. of St. Louis et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

480 F.2d 11 (1973)

Petition of Canal Barge Company, Inc., as Owner and Operator of the M/V ELAINE JONES, Praying For Exoneration From or Limitation of Liability.

CANAL BARGE COMPANY, INC., Petitioner-Appellant-Cross Appellee, v. Mary Kathryn GRIFFITH, Individually and as Administratrix of the Estate of George L. Griffith, Deceased, Respondent-Appellee-Cross Appellant, Terminal Railroad Assoc. of St. Louis et al., Respondents-Appellees.

No. 71-2226.

United States Court of Appeals, Fifth Circuit.

March 30, 1973.

Rehearing and Rehearing Denied June 18, 1973.

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Robert B. Acomb, Jr., New Orleans, La., Douglas C. Wynn, Greenville, Miss., for petitioner-appellant.

Harry E. Barsh, Jr., Lake Charles, La., Clayton J. Swank, III, Greenville, Miss., Elmer Price, St. Louis, Mo., for respondents-appellees.

Frank S. Thackston, Jr., J. A. Lake, Greenville, Miss., for Terminal Railroad Ass'n. of St. Louis.

Before GODBOLD and RONEY, Circuit Judges, and BOYLE, District Judge.

Rehearing and Rehearing En Banc Denied June 18, 1973.

GODBOLD, Circuit Judge:

This case arises from a collision on October 14, 1969 between the M/V Elaine Jones, a towboat owned and operated by Canal Barge Company, Inc. (Canal), and the Eads Bridge, a fixed structure that spans the Mississippi River at St. Louis, Missouri. The impact caused extensive damage to the bridge and resulted in the death of the towboat pilot, George L. Griffith. Eads Bridge is owned by St. Louis Bridge Company and operated by Terminal Railroad Association of St. Louis.

Canal filed a petition seeking exoneration or limitation of liability. In response, Mary Kathryn Griffith, as personal representative of the decedent,¹ claimed money damages for the death of her husband; Terminal sought recovery for damages to the bridge and loss of revenue; and two other corporate claimants made demand for minor property damage. Canal counterclaimed for indemnity from the Griffith estate claiming that negligence of Griffith was the proximate cause of the mishap.

The District Court found that Canal was negligent through its employees, that the Elaine Jones was unseaworthy, that Canal's negligence proximately caused the collision and the unseaworthiness proximately contributed thereto, and that Griffith was not negligent. Accordingly, the court held Canal liable for damages to all claimants. Canal appeals, claiming error with respect to liability and damages, both as to Terminal and to Mrs. Griffith. Mrs. Griffith cross appeals with regard to the amount of damages awarded and elements of damage allegedly omitted. We affirm with respect to Canal's liability to Terminal and to Mrs. Griffith, and with respect to the damages due Terminal. We reverse with respect to damages due Mrs. Griffith and with respect to her husband's contributory negligence.

We focus on four areas of inquiry: (I) liability as between Canal and Terminal; (II) liability as between Canal and Mrs. Griffith; (III) damages due Terminal; (IV) damages due Mrs. Griffith on behalf of George Griffith's beneficiaries designated by pertinent statutory and general maritime law.

We set out the facts needed to understand our disposition.²

The Elaine Jones, a 5300 horsepower diesel towboat, was manned by Captain Stroschein, pilot Griffith, and eight support personnel. Stroschein boarded the Elaine Jones as pilot on Sept. 29, 1969. His previous experience included piloting similar towboats of 4300 horsepower, but his regular employment was as master of an 1800 horsepower vessel. When Griffith came aboard on Oct. 7, Stroschein became master and Griffith pilot. The two had never served together before. Griffith regularly piloted a sister vessel of the Elaine Jones, identical in dimension but having 1000 less horsepower.

The Elaine Jones passed northbound through St. Louis Harbor on Oct. 9 when the Mississippi River gauge was 4.7 feet, well below flood stage of 30 feet. It operated north of St. Louis for several days, then proceeded back down-river with seven empty barges. At Wood River, Illinois, just north of St. Louis, while Captain Stroschein was on watch, one empty and two loaded barges were added to the tow and the entire ten-barge tow rearranged. With Captain Stroschein still at the controls, the Elaine Jones departed Wood River heading south pushing the tow. Shortly before noon when Griffith was due to relieve Stroschein at the wheel, the Elaine Jones arrived at Lock 27, located at Mile 185, five miles north of Eads Bridge. Griffith took over from Stroschein at 11:45 a. m. and left Lock 27 five minutes later.

In the interval between the Elaine Jones' upriver passage through St. Louis Harbor on Oct. 9 and its departure from Lock 27 on Oct. 14, and as a result of heavy rainfall, the river at the harbor had risen precipitously to 30.3 feet, just above flood stage of 30 feet, a fact known to both pilot and master.

The physical facts concerning St. Louis Harbor, and the effects of high water are well described by the District Court.

3. St. Louis Harbor, the site of this accident, because of the presence of six river bridges, their close proximity and construction, coupled with the meander of the river and its currents, enjoys a reputation among river people of being a difficult area or passage to safely navigate, particularly in high water. A vessel southbound, as was the Elaine Jones, after departing Lock 27, is first confronted with the Merchants Bridge (Mile 183), and then the McKinley Bridge (Mile 182.5), which present limited horizontal clearance. Immediately after passing the McKinley Bridge, the vessel must line up for safe passage of the Veterans Bridge (Mile 180.2) and then the Eads Bridge (Mile 180). Just down-river from the Eads Bridge are the Poplar Street Bridge (Mile 179.3) and the MacArthur Bridge, also known as the "City" bridge (Mile 179). For southbound traffic, a gradual bend in the river from left to right occurs above the Veterans Bridge and extends to below the MacArthur Bridge. Contributing to the navigation problem is the presence of Eads Bridge which, due to its arched construction, affords a limited amount of clearance in high water through which vessels can safely pass. Also, during high water, i. e., 20 feet or more on the St. Louis gauge, the current immediately above Veterans Bridge runs from the right descending bank to the left descending bank, from the Missouri shore toward the Illinois shore. This high water current condition, called a left-hand "set" or "draft", has a pronounced effect of moving a southbound boat and tow toward the Illinois bank rather than straight ahead. These navigation conditions exist whenever the river is at 20 feet or more on the St. Louis gauge and are facts known to experienced mariners navigating towboats through that section of the Mississippi River.

* * * * * *

5. * * * As the river stage exceeds 20 feet, the force of the aforementioned set to the left above Veterans Bridge likewise increases; and also as the rate of rise in the river accelerates, the force of the set becomes more violent. Although a sudden rise of the river increases the severity of the set, this is an operating factor known to persons experienced in navigating St. Louis Harbor during high water. Moreover, the experienced navigator of a downbound vessel can reasonably predict the severity of current in St. Louis Harbor by observing upriver conditions at Wood River, Illinois, and water levels at Lock 27.

6. The above left set or cross-current is not encountered by downbound vessels except in high water. At all other times the current in the immediate area runs straight down the river. When navigating the harbor downbound in low water (10 feet or less), it is an acceptable practice for a vessel to approach the Veterans and Eads Bridges in line with their green lights and pass under both along the mid-channel sailing line, as depicted on the U.S. Engineers\' official chart (Ex. 13). See App. A. This sailing line is the normal low water configuration for passage of a descending vessel. When navigating the harbor down-bound in high water, it is the commonly accepted practice, in order to compensate for the left hand set encountered just above Veterans Bridge, to approach Veterans Bridge well to the right of the mid-channel sailing line, or favoring the Missouri shore. By this means, the vessel and tow are not forced by the cross-current to the left of the mid-channel sailing line, as it runs immediately beneath both the Veterans and Eads Bridges. Thus, a downbound vessel and tow that in high water approach the Veterans and Eads Bridges within one-quarter of a mile north of Veterans Bridge on the mid-channel sailing line are too wide or "out of shape" to safely navigate the passage beneath the two bridges.

323 F.Supp. at 808-809.

Before the towboat's departure from Lock 27, Stroschein spoke briefly to Griffith without issuing any instructions for navigating St. Louis Harbor, and then left the wheelhouse for the galley. Stroschein returned at 12:10 p. m., at which time the head of the tow was more than a mile above Veterans Bridge, or approximately half way between McKinley Bridge, mile 182.5, and Veterans Bridge, mile 180.2. Stroschein noted without comment that Griffith had set the Elaine Jones on the midchannel sailing line, the course to be followed under normal river conditions. At that time the vessel had not yet reached the fail-safe point, that is, the point in the river beyond which correcting the course to a heading proper under the extraordinary conditions would be too late to avoid almost certain mishap. Still the captain said nothing about the river conditions or the course to be followed nor did he assume command. Pilot Griffith continued on the mid-channel sailing line past the fail-safe point and until the head of the tow reached about one-quarter mile north of Veterans Bridge. At this juncture the left hand set in the river was...